Bui v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 503
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bui v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 503
File number: PEG 142 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 June 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – extension of time application – insignificant delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 359 & 477
Migration Regulations 1994 (Cth), reg 4.21 and cl 500.212 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 135
Gupta v Minister for Immigration [2016] FCA 1004
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZXHY v Minister for Immigration [2007] FCA 622
Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 95
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 139 Date of hearing: 30 May 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms B Rayment Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 142 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOANG LINH BUI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Vietnam (CB 2-4). He first arrived in Australia in May 2013 as the holder of a student visa (granted in April 2013 and ceasing in March 2017) (CB 50, 52 & 118).
The applicant applied for a further student visa in March 2017. That visa was initially refused but, after seeking review of that decision, the applicant was granted a further student visa on 28 October 2019 (CB 14 & 52).
On 18 November 2020, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (being the visa the subject of this proceeding) (the “visa”) (CB 1-19). In that application, the applicant indicated that he was enrolled and in the process of completing a Certificate IV in Commercial Cookery at Stanley College (the course commencing on 3 August 2020) with a view to becoming a professional chef and opening a restaurant in Vietnam (CB 9-10). With his visa application, the applicant also provided a statement addressing the genuine temporary entrant criterion. In that statement, the applicant explained that his Certificate IV course was “packaged with a Diploma of Hospitality and a Bachelor of Business” and that he “expect[ed] to complete [his] studies in February 2024” (CB 20).
The statement also set out challenges the applicant claims to have faced in completing his studies, as follows (without alteration) (CB 20):
During the time I study in Australia, unfortunately, I have encountered with unexpected challenges. In 2017, I successfully completed the Certificate III in Commercial Cookery at Cambridge International College. Due to family issues that relate to my step-mother and her children, I had a very hard time and cannot focus on studying at all. I also have serious depression for years and do not have anyone to share my concerns with, even my father was also very busy with his works at that time. I was also ready to go back to Vietnam due to all these problems, that is the reason why I missed classes when studying at Perth College of Business and Technology. However, as my family problems are recently solved, my father encouraged me to continue my study in Australia as this is always my passion. Besides, not to mention the current situation of the pandemic is also very challenging for me to go back and find a job. Therefore, I decided to enrol in Stanley College – which is one of the best institutions in providing cookery courses in Perth. So far, I have learnt a lot of useful skills and techniques when attending this course at Stanley College. I also plan to continue studying Bachelor of Business at Stanley College after complete the Diploma course, in order to gain more managerial knowledge and skills to run my future business effectively.
After overcoming all these challenges, I will continue to try my best to complete the course on time and ensure that I will be on track. With the support and motivation from my father and my friends in Perth, I believe that I can complete the course successfully. I will go back to Vietnam, continue practicing the skills to become a great chef and run my own restaurant. With a degree in developed countries and skills that I obtained during my studies, I strongly believe that I can run a business effectively and become a great chef.
On 5 October 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 27-31). The delegate found that the applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 30).
On 21 October 2021, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 32-39). In that review application, the applicant appointed a registered migration agent to act as his representative in relation to the Tribunal review (the “representative”) (CB 36).
On 2 December 2021, the Tribunal invited the applicant (pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”) and through his representative) to provide information in relation to the requirements that he be enrolled in a registered course of study and that he be a genuine applicant for entry and stay as a student (CB 44-47). That invitation relevantly provided (CB 46-47):
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 16 December 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 16 December 2021, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 16 December 2021 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The Tribunal received a copy of the completed “Request for Student Visa Information form” within the requisite time period (CB 48-59 & 115). In that form, the applicant noted that he “did not complete” the Certificate IV in Commercial Cookery and “never started” both the Diploma of Hospitality Management and Bachelor of Business courses he had enrolled in through Stanley College (CB 54). The applicant also indicated that he was currently enrolled and “studying” a Certificate IV in Commercial Cookery through Skills Institute Australia and was enrolled in a Diploma of Hospitality Management (through the same course provider) (CB 55).
On 4 February 2022, the Tribunal invited the applicant (through his representative) to appear at a hearing before it on 24 February 2022 at 1.00pm (CB 60-65).
On 17 February 2022, the Tribunal wrote to the applicant’s representative and provided copies of the relevant Hearing Declaration forms that the applicant, his representative and any witnesses would need to complete. That correspondence also explained that the hearing start time had been changed to 2.00pm “as part of the [Tribunal’s] response to the impact of COVID-19 on services” (CB 73-74).
On 22 February 2022, the Tribunal again contacted the applicant’s representative (via email) to advise that, “[d]ue to circumstances beyond our control the Member is unable to conduct the hearing on that day.” As a result, the hearing was rescheduled to 17 March 2022 at 2.00pm by telephone (CB 75-80). The correspondence also provided the applicant with a link to access further information in relation to the Tribunal’s practices as a result of COVID-19 as follows (CB 78):
Please see the COVID-19 Special Measures Practice Direction - Migration and Refugee Division (available at for further information and directions about the current procedures for the AAT.
On 10 March 2022, the applicant’s representative provided the Tribunal with submissions in support of the applicant’s review application, together with a copy of the applicant’s completed Certificate III in Commercial Cookery (and associated academic transcript), a Course Progress Statement from the Skills Institute Australia (dated 17 February 2022 and indicating that the applicant’s progress was seventy four percent) and two Overseas Student Confirmation-of-Enrolment forms (“CoEs”) relating to a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (both through Skills Institute Australia) (CB 81-92).
On 17 March 2022, the applicant appeared before the Tribunal (via telephone) to give evidence and present arguments. He was assisted at that hearing by his representative and an interpreter (CB 115).
On 22 March 2022, after conducting a check of the Provider Registration and International Student Management System (PRISMS) records relating to the applicant, the Tribunal invited the applicant (through his representative) to comment on or respond to the following information (CB 102-105):
The particulars of the information are:
•Recent checks of the Provider Registration and International Student Management System (PRISMS) indicates that you have had at least 27 Confirmation of Enrolment certificates cancelled since 2017 and have not completed any courses since 2017.
The member is seeking an explanation as to why you have not completed any courses since 2017. The member is also seeking a copy of an academic transcript for the Certificate IV course that you are presently undertaking.
This information is relevant to the review because you have applied for a Student visa and the PRISMS record indicates that you have not completed any courses since 2017.
If we rely on this information in making our decision, we may find that you were not a genuine student during the periods set out above and therefore you do not meet the criterion in clause 500.211. If we make this finding, we may conclude that you are not entitled to the grant of a Student visa.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 5 April 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 5 April 2022, the applicant’s representative provided the Tribunal with a written submission in response, together with a Course Progress Statement from Skills Institute Australia (dated 31 March 2022 and indicating that the applicant’s progress was seventy four percent). That Course Progress Statement also indicated that the applicant’s course would end on 6 May 2022 (CB 106-110).
The submissions provided relevantly stated (CB 109-110):
Please be advised that Mr Bui has reviewed the details from the PRISM statement and noted numerous CoEs showing Cancelled. He would like to explain that the majority of CoEs were mainly consisting of enrolments to study three courses that were normally packaged together, namely, Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management. So at one particular incident where Mr Bui could not complete his studies for the Certificate III in Commercial Cookery, then all CoEs that were packaged together would automatically be cancelled as well. His numerous attempts to re-enrol again and again, show his commitment to be a genuine student holding the Student visa. It was just that many different incidences, setbacks and hurdles got in the way which stunted his educational progress.
Mr Bui would like to emphasize that he had always intended to complete what he had originally set out to study and that was to complete his studies in Commercial Cookery in order to become a Chef. Even though he struggled with his learning due to his low English competency he still strived to always pay college tuition fees, to be enrolled throughout his temporary stay in .Australia on a Student visa. At times when he could not study, it was mainly due to mental depression, or due to the COVID-19 pandemic related issues. Mr Bui always had the intention to complete his studies to become qualified as a Chef, in order to return home to develop his career and become an entrepreneur in his own right.
Up till now, he has been consistently attending classes and handing in assignments to be assessed. Please find attached the Skills Institute Australia Course Progress Statement showing that he would be completing the Certificate IV in Commercial Cookery by 6 May 2022.
I would like to seek on behalf of Mr Bui, your consideration to allow him more time to obtain the qualification certificate, academic transcript and completion letter of the Certificate IV in Commercial Cookery (by early May 2022) in order to provide these evidentiary documents to you, to show his successful achievement of progression in his studies.
On 10 May 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 114-128).
On 11 May 2022, the applicant was notified of the Tribunal’s decision via email (through his representative) (CB 111-113).
On 6 July 2022, the applicant applied to this Court seeking judicial review of the Tribunal’s decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act. In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has concluded that an extension of time should not be granted.
CONSIDERATION
On 23 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant prior to the hearing.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 6 July 2022 (with the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a court book numbering 130 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 11 May 2023.
The applicant appeared before this Court (on 30 May 2023) without legal representation. His partner and father attended the hearing with the applicant to provide support.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions. Whilst the applicant did not have the Court Book with him, he confirmed that he had received it and had reviewed it. The Court is satisfied that the applicant was not disadvantaged by not having the Court Book with him. To the extent that material in the Court Book was referenced, the Court ensured that the Minister’s representative explained to the applicant what was being referenced and, importantly, its significance.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 10 May 2022. The date by which the applicant was required to file his application in this Court was 14 June 2022. Unfortunately, the applicant did not file his application until 6 July 2022. Hence, the delay here is 22 days.
The Court further explained that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her review application.
In this regard, the Court notes that pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing, detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided a “ground” explaining why he believes that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting, again, that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of an arguable case of error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the applicant to address each of the factors outlined above and to highlight anything else that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [23]), the delay in this matter is 22 days.
In the Court’s view, the delay is not significant. This weighs in favour of granting the extension of time.
Prejudice
It was conceded by the Minister’s representative (in written submissions filed in this Court on 11 May 2023) that there is no prejudice to the Minister caused by the applicant’s delay.
This also weighs in favour of granting the extension of time.
Explanation
Here, the applicant’s “ground” for an extension of time provides (without alteration):
1.I filled the forms and submitted the application myself. Since there have been a few mistakes, I need more time to fix and complete the forms.
In the applicant’s affidavit (filed in support of his application for review on 6 July 2022), the applicant also states (without alteration):
13.Regarding the reasons why I ask for extension of time: first, I filled the forms myself and misunderstood the statement “within 35 days of the date of the migration decision”; second, I submitted my application to Federal Court of Australia and received instructions from Shannon (National Migration Team) to lodge my application to FCFCOA instead.
The applicant’s oral submissions before this Court largely mirror what is set out in his affidavit – that is that the applicant had attempted to file in the Federal Court but was told that he needed to file in this Court (resulting in a delay). The applicant also explained that the fees in this Court were “much cheaper than the fees in the other court”.
To the extent that the applicant claims that he was confused about which court file his application in, the Court notes that the applicant was provided an information sheet when he was notified of the Tribunal’s decision which explained what the applicant was required to do to seek review of the Tribunal’s decision. A copy of the relevant information sheet was annexed to the applicant’s affidavit and relevantly provided:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The Court is satisfied that the applicant was provided with information about which Court could assess his application for review and the timeframe within which an application to that Court needed to be made.
While the Court appreciates that Court processes can be confusing to self-represented litigants (particularly those for whom English is not their first language) and sympathises with the applicant in this regard, ignorance is no excuse. It is noted that in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, the Federal Court explained as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
The applicant’s comments about the fees required to seek review in this Court and the Federal Court were not entirely clear. The applicant seemed to be saying that the filing fees in this Court were cheaper than the fees in the Federal Court. It would seem to the Court that this would not hinder the applicant in filing his application in this Court or cause him any undue delay. To the extent that the applicant suggests that he (mistakenly) thought he needed the higher amount to file his application in the Federal Court and was unable to afford those (higher) filing fees, the Court is again sympathetic. Many applicants appearing before this Court are in a similar situation and find themselves struggling financially. The Court notes, however, that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application on time: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26] per Barker J. There is also no evidence that the applicant contacted the Court registry to discuss this issue or to seek any advice or assistance in this regard.
The Court does not consider the explanations provided by the applicant to be satisfactory. This weighs against granting an extension of time.
Merits
The most significant factor for consideration when determining whether an application for an extension of time should be granted is, arguably, whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on his substantive “ground of review” (set out in the application for judicial review filed by him on 6 July 2022) and the concerns highlighted in the applicant’s affidavit (filed in support of his application for judicial review on 6 July 2022) and to outline any other concerns that he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court in this regard was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant stated that because the hearing took place by telephone, there was a possibility that the “information was misplaced” and there may not have “enough information for the Tribunal because the hearing was over the phone”.
The applicant also claimed that the evidence he provided (annexed to his affidavit filed in this Court) was dated after the date of the Tribunal’s decision. In that regard, the applicant explained that the information in relation to his course “was not ready for the Tribunal on the day that it was required” because he “had not yet finished the course and the other documents related to finance”.
The applicant also raised concerns in relation to the assistance given to him by the interpreter at the Tribunal hearing, claiming that he “did not have a good interpreter on the day” of that hearing and explaining that his representative had to assist him with interpreting. He further noted that “otherwise [he] was stressed and could not answer the questions well”.
Finally, the applicant complained about “criticisms” made by Tribunal in relation to the applicant’s lack of plans for his return to Vietnam and his access to adequate finances in Australia. In that regard, the applicant claimed that the Tribunal had not asked him questions about those issues at the hearing.
The applicant’s oral submissions, to the extent that they give rise to an arguable case of error on the part of the Tribunal, will be discussed further below.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision.
The Tribunal’s decision is 15 pages in length and spans 58 paragraphs. The final six pages contain a copy of Ministerial Direction No. 69 (“Direction 69”).
The Tribunal began by explaining that the applicant had applied for the visa to undertake study in Australia on 18 November 2020. That visa, the Tribunal explained, was refused by a delegate of the Minister on 5 October 2021 and the applicant sought review of that refusal decision by the Tribunal (at [1]-[3]). The Tribunal confirmed that the applicant had appeared before the Tribunal on 17 March 2022 with the assistance of his representative and an interpreter in the Vietnamese and English languages (at [4]-[5]).
The Tribunal explained that it had sought additional information from the applicant (pursuant to s 359 of the Act) in support of his review application and the Tribunal confirmed that a response to that request had been received (at [6]-[10]).
The Tribunal further noted that it had searched the PRISMS records to ascertain if the applicant was still enrolled in a course of study, explained how the PRISMS records worked and its use and confirmed that the applicant held a current CoE in a registered course of study as at 17 March 2022 (being the date the PRISMS search was conducted) (at [10]-[13]).
The Tribunal detailed a further letter sent to the applicant (pursuant to s 359A of the Act) inviting the applicant to comment on or respond to information from the PRISMS records (indicating that the applicant had not progressed academically in any course since 2017). The Tribunal confirmed that a submission was received in response to that request (at [14]-[16]).
The Tribunal then identified that the issue before it was whether the applicant was a “genuine applicant for entry and stay as a student” as required by cl 500.212 in Schedule 2 of the Regulations. The Tribunal explained that in making that determination, it was required to have regard to Direction 69 (noting that the Direction is not intended as a checklist but rather a guide to decision-makers only) (at [18]-[21]).
The Tribunal noted the applicant’s evidence that he had arrived in Australia in May 2013 and had been living in Australia for nine years. The Tribunal noted that the applicant had indicated that he was studying a Certificate IV in Commercial Cookery (with an end date of 6 May 2022) and was enrolled in a Diploma of Hospitality. The Tribunal took into consideration the fact that the applicant may have completed the Certificate IV in Commercial Cookery at the date of its decision but noted that the applicant’s further intended study (of the Diploma in Hospitality) would extend the applicant’s stay in Australia to over 10 years (at [23]-[25]).
The Tribunal explained:
26.The representative submitted that he could provide further information to the Tribunal when a response was filed in answer to the Section 359A. He wanted to provide a transcript and his Certificate results. The Tribunal sincerely hopes that he has completed the Certificate IV Course. However regardless of those facts the Tribunal's concerns relate to the fact that aside from his English courses that he completed from his arrival in 2013, that the applicant has only completed Certificate III in Commercial Cookery. At the time of the hearing, he had been in Australia for nearly 9 years and was in the process of completing a Certificate IV in Commercial Cookery and had not completed any courses since 2017. His submission is that he had low competency in English and because of the Covid pandemic that he was unable to complete the Courses. The Tribunal has considered those facts, but he has taken an inordinate amount of time to complete the Course, even if those factors are taken into consideration.
The Tribunal then set out the applicant’s work history (including salary information) (at [27]).
The Tribunal continued:
28.He was asked by the Tribunal why he had taken so long to complete the Certificate IV in Commercial Cookery, and he replied that he did not submit some of his assignments and failed.
29.In his written submissions dated 9 March 2022 the applicant through his agent stated as follows. “In order to fully understand the applicant’s predicament there is a need to provide details of what happened to him leading up to his Student Visa (Subclass 500) application on 18th of November 2020. During this time the applicant was still studying the Certificate IV in Commercial Cookery amidst the Covid 19 pandemic and so his study was heavily impacted as his mental and physical health was weakened by the stress of illness and insecurity. The whole world was in shutdown and news of so many people dying in Vietnam really scared him to the point where he could not eat or sleep well and eventually this affected his concentration during his study times. He was so worried for his parent's health that he would call every few hours in the day, every day, for many weeks. His parents also were so very worried about his well-being in Australia with respect to Covid 19 and begged him not to return home to Vietnam anytime soon as his life would be in danger. All of this compounded his insecure mental state to the point that at times he could not function normally and could not get out of bed most days in the past.”
The Tribunal explained that the applicant’s PRISMS records indicated that he had completed a Certificate III in Commercial Cookery on 30 July 2017. Noting that the pandemic did not eventuate in Western Australia until March 2020, the Tribunal considered that the applicant should have had sufficient time to complete a Certificate IV in Commercial Cookery. The Tribunal further explained that the applicant had first enrolled in the Certificate IV in Commercial Cookery course on 24 July 2017 and then again on 19 October 2017, 16 April 2018, 14 August 2018, 14 February 2019, 29 April 2019 and 14 September 2019 (at [30]-[31]).
The Tribunal indicated that it had asked the applicant to explain the lack of completion of any courses since 2017 but the applicant did not explain “why” – save to say that he had not submitted assignments. The Tribunal also put to the applicant that it rejected his claim that the pandemic affected his studies because he had been enrolled in 2017 and 2018 (before the pandemic arose). The Tribunal also noted that if the applicant had suffered from any mental health issues (including depression or anxiety as claimed), evidence should have been provided to the Tribunal in that regard (but was not) (at [32]-[33]).
The Tribunal continued:
34.In his response to the Tribunal about the records that showed that he had been enrolled in numerous courses the applicant through his agent replied that some of the courses were packaged courses and so it looked worse than the reality. Nevertheless, the Tribunal did not take that in consideration as the focus of the Tribunal’s concerns is of the lack of completed courses.
35.The Tribunal is concerned that since 2017 after he completed the Certificate III in Commercial Cookery there was no evidence before the Tribunal at the hearing that he had progressed to finishing any other course. The Tribunal weighs those facts against the applicant’s case.
The Tribunal summarised the applicant’s visa history in Australia and noted that the applicant had told the Tribunal that he had an issue with a previous Departmental decision (which he successfully appealed to the Tribunal) and, because of that, he held a bridging visa from 2017 to 2019. The applicant also told the Tribunal that he had not applied for any other Australian visa and had not been refused a visa in any other country (though his Australian student visa was (initially) refused on 31 May 2017) (at [36]-[38]).
The Tribunal summarised the applicant’s evidence as follows:
39.He stated that he chose the education provider for the Australian courses because: “Being able to experience and understand hospitality business from different angles (hierarchically) will help me to better run my business in the future once I complete my course. Diploma will provide me more profound knowledge of managing and operating my own restaurant especially from business perspective. My plan in the future is to complete all the desired courses, accumulate my experience during work in Australia and go back to my home country. Then I will pursue my dream to start up a grand Western restaurant and hope to expand it even further with multiple locations.”
The Tribunal found the applicant’s statement to be commendable but was concerned that he was not in a position to explain how he proposed to achieve his goal, noting a lack of plans or evidence in that regard. The Tribunal placed weight against the applicant in this regard because of “the lack of details in his answer” (at [40]).
The Tribunal was of the view that the applicant had worked in the hospitality industry since 2014 and that, though the applicant complained his mental health had affected his studies, there was no evidence his working life in Australia had been affected by the pandemic or his mental health (at [41]).
The Tribunal also noted the applicant’s evidence that his father lives in Vietnam but the applicant does not get along with his stepmother and, if he returned to Vietnam, he does not plan to live with his family. The Tribunal also noted the applicant’s evidence that he has a brother who is a permanent resident of Canada. The applicant claimed to have video calls with his family once a week and said he also emails them. The Tribunal doubted the applicant’s family ties in Vietnam were close or would provide an incentive for him to return (given the time he had already spent away) and placed some weight on those facts against the applicant. The Tribunal also asked the applicant if he would “prefer to become a permanent resident of Australia” and noted that the applicant had indicated that he did not wish to do so (at [42]-[44]).
The Tribunal considered that, though some of the applicant’s family members reside in Vietnam, because he had lived in Australia for most of his adult life, it would be difficult to expect the applicant to have strong emotional connections to the community in Vietnam after being away for nine years (further noting that the applicant himself had indicated that he had no connections in this regard) (at [45]).
Noting that the applicant had not provided evidence of any economic ties to his home country, the Tribunal considered that the applicant’s employment, strong working history and assets (in the form of a car and technological devices) in Australia may be motivating factors for the applicant to remain in Australia and placed weight on that information against the applicant (at [46]).
The Tribunal continued:
48.He said that after the completion of his Course he will go back to Vietnam to help his family business. He said that he will follow his passion and open a Western Restaurant of his own to enhance his career.
49.In answer to the details of remuneration the applicant expects to receive in his home country or a third country using the qualifications gained from his studies in Australia he stated as follows; “With my application, I expect to help my family business affluently with my knowledge gained here. Moreover, with condensed knowledge that I have received from both education and work experience in Australia, I will be more confident in opening my own restaurant and operate it successfully.”
50.The Tribunal considers that the statement contained in the paragraph above is vague and generalised and that the applicant has not provided any detailed evidence and should have a fair idea now. He should have a definite plan and completed some research of what his prospects will be.
The Tribunal also noted that the applicant did not have any concerns regarding civil or political unrest in his home country and had advised the Tribunal that he did not have to undertake any military service. The Tribunal also noted that the applicant had complied with the migration laws in Australia (at [51]-[52]).
The Tribunal was concerned that, given the amount of time the applicant had spent in Australia, a further student visa may be used primarily for maintaining ongoing residence (at [53]).
On the basis of the above, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and thus did not satisfy the criteria set out in cl 500.212(a) in Schedule 2 of the Regulations. The Tribunal consequently affirmed the delegate’s decision refusing to grant the applicant the visa (at [55]-[58]).
Proposed application for judicial review
The substantive application for judicial review (filed by the applicant on 6 July 2022) contains one proposed “ground of review” as follows (without alteration):
1.I believe that the AAT’s decision should be reconsidered because there was a lack of providing full information and evidence to prove that I am a genuine student.
The applicant also raised additional concerns in his supporting affidavit (also filed in this Court on 6 July 2022) as follows (without alteration):
1.In the decision record of AAT, it is stated in contrast to my Covid-19 as an influent factor that “The pandemic did not eventuate in Western Australia until March of 2020 so there is a long period of time prior to that date, which should have been sufficient time to complete the Course”. After completing Certificate III in March 2017, I had to extend my visa so that I could continue on studying Certificate IV in Commercial Cookery and Diploma of hospitality Management.
2.However, the result released by Department of Immigration and Border Protection in May 2017 was unpleasant to me, stating that I was not a genuine student. This, caused me a long-lasting trauma since I came here to study and I had always been on my own in such a foreign country. Moreover, this refusal appeared to be an unwelcoming response meanwhile I had been complying to all the conditions provided in my Student Visa.
3.In June 2017, I appealed to the AAT via Aussiz Group regarding this decision with the desire of a thorough review. I was aware that it would take me 6 months until the Hearing in relation to the decision. Nonetheless, in fact, it took me more than 20 months which was on 12 April 2019. This was out of my control and it also meant that my worries lasted longer without knowing whether I could continue my studying or not. This tremendously affected my studying. It caused me uneasiness, distraction and eventually my CoE was cancelled due to my inability of completing the assignments.
4.However, I did not give up. It can be apparently seen that I deemed and took effort to keep studying Certificate IV in Commercial Cookery as I constantly enrolled in the courses commencing on 29 October 2017, 16 April 2018, 14 August 2018, 14 February 2019, 29 April 2019 and 14 September 2019. I indeed paid the tuition fees of all those courses, not simply just enrolling. It shows that I earnestly wanted to study with any price and at all cost. Eventually, my effort paid off by the fact that I have completed my course on 6 May 2022 and received my Certificate IV on 19 May, 2022, evidence as attached.
5.In support to my genuineness as a student, at the Hearing on 12 April 2019, the decision was instantly established stating that “The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 student visa: cl.500.212 of Schedule 2 to the Regulations.” (Seen in the attachment). The fact that the decision was given immediately within the Hearing proved my student genuineness.
6.It is stated that I had no evidence proving my “working life in Australia has been affected by his mental health or Covid 19” but my study. In reality, I did not work from 4 March 2020 to 29 July 2020. Attached is the evidence of my hours.
7.About the result of my recent AAT appeal, I want to explain my dissatisfaction of the process. First of all, the announced time of the meeting was changed from 24 February 2022 to 17 March 2022. I was notified about the time change just 2 days before the supposing scheduled time. That the Hearing was going to be held via phone call already burdened me due to the limitation of expressing myself and communicating with the interpreter, the time change stressed me out even more.
8.I also want to point out that the interpreter assigned on that day could not wholesomely transmit what I truly wanted to say. This led me to converse with the Member by myself. The language barrier plus my anxiety caused me difficulties in understanding the Member as well as challenges in delivering my answers. An evidence was when my agent who accompanied me during the Hearing had to assisted me in explaining my family business.
9.The AAT decision stated that my statement about my choice of Australia as the education provider “is commendable” but I did not provide any plans of achieving the goal. As I mentioned about, the phone call did not allow me to deliver 100% what I wanted to answer.
10.In terms of my business plans, I have been a franchisee holding a 45% ($AUD115,000) ownership of a Wok in a Box shop located at Crown Perth Food Court, Great Eastern Highway, Burswood, WA 6100 since 1 March, 2022. The investment was provided by my family for my experience of running a business while I am studying here. At the same time, I am only working at Kalamunda Hotel as a chef. The reason behind running Wok in a Box and working for another corporation simultaneously is because it can benefit me by accumulative experience for both what I am studying which is Commercial Cookery specializing in Western culinary (Certificate IV) and my management skills (Diploma of Hospitality Management). I guarantee that all of my activities are compliant to the Australian laws.
11.To be precise, owning Wok in a Box does not ensure my permanent stay in Australia, it just acts as a tool to help myself in preparation of opening my own business in Vietnam.
12.With all my respect and through the reasons as well as evidences I have provide, I simply desire an opportunity to complete my study in Diploma of Hospitality Management.
Annexed to the applicant’s affidavit were additional documents in support of his review application. Those documents will be addressed below.
Reading the materials provided by the applicant as broadly as possible (again, noting the principles in MZAIB), the applicant can be seen to raise three issues of concern that he wishes to have addressed:
(a)Issue 1: whether the Tribunal erred by rescheduling the hearing;
(b)Issue 2: whether the Tribunal erred by conducting the hearing via telephone; and
(c)Issue 3: whether the Tribunal erred by failing to provide the applicant with adequate interpretation services.
As correctly submitted by the Minister (at [43] in written submissions filed in this Court on 11 May 2023), the remainder of the applicant’s concerns go to the merits of the Tribunal’s decision. As outlined above, this Court does not have the jurisdiction to review the merits of the applicant’s case or to grant the applicant the visa that he seeks: Wu Shan Liang.
The three issues identified above will be considered (at a “reasonably impressionistic” level only) below.
Issue 1: whether the Tribunal erred by rescheduling the hearing
The applicant has expressed concern about the Tribunal rescheduling the hearing before it “just 2 days before the supposing scheduled time”.
As outlined above, the applicant was initially invited by the Tribunal (on 4 February 2022 and through his representative) to appear at a hearing before it on 24 February 2022 (CB 60-65).
The Tribunal contacted the applicant again on 22 February 2022 (again through his representative) advising that “[d]ue to circumstances beyond our control the Member is unable to conduct the hearing on that day” and that the hearing had been rescheduled to 17 March 2022 at 2.00pm by telephone (CB 75-80). That correspondence also included a link to access further information in relation to the Tribunal’s practices as a result of the COVID-19 pandemic (CB 78).
On 17 March 2022, the applicant appeared before the Tribunal (via telephone) (CB 115).
While the Tribunal only notified the applicant that the hearing would be adjourned two days prior to the originally scheduled hearing date, the Court considers that, on the information above, this was an unavoidable adjournment and was nonetheless reasonable. There is no prescribed time period before a scheduled hearing date that the Tribunal must adhere to within which it can cancel or reschedule that hearing. The relevant question is whether the applicant was given enough notice of the rescheduled hearing date.
The requirements for a notice of invitation to appear before the Tribunal (including the period of notice which must be given) are set out in s 360A of the Act as follows:
360A Notice of invitation to appear
…
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
…
The prescribed period in relation to a notice to appear before the Tribunal are set out in reg 4.21 of the Regulations. As the applicant in this matter was not in immigration detention, the relevant notice period is set out in reg 4.21(4) as follows:
4.21 Prescribed periods—notice to appear before Tribunal
…
(4)If the invitation relates to any other application for review of a decision, the period of notice:
(a)commences when the person receives notice of the invitation to appear before the Tribunal; and
(b) ends at the end of:
(i)14 days after the day the person receives notice of the invitation to appear before the Tribunal; or
(ii)if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
Here, the Tribunal sent an invitation to the applicant (through his representative) by email on 4 February 2022 inviting the applicant to attend a hearing before it on 24 February 2022 (the “hearing invitation”) (CB 60-65). Pursuant to s 379C(5) of the Act, in circumstances where a document is transmitted by fax, email or other electronic means, the “person is taken to have received the document at the end of the day it was transmitted”. Further, s 379G(2) of the Act provides that, if the Tribunal gives a document to the applicant’s authorised representative, the Tribunal is taken to have given a copy of that document to the applicant. The applicant was thus taken to have received the hearing invitation on 4 February 2022. This means that the hearing invitation was taken as received 20 days prior to the originally scheduled Tribunal hearing (which exceeds the prescribed period of 14 days).
On 22 February 2022 (again through his representative and via email), the Tribunal notified the applicant of the rescheduled hearing on 17 March 2022 (the “rescheduling notice”) (CB 75-80). For the reasons outlined above, the applicant is taken to have received that rescheduling notice at the close of business on 22 February 2022. The applicant thus received the rescheduling notice 23 days prior to the rescheduled hearing. This again exceeds the prescribed period of notice in relation to a hearing.
The Court notes, however, that even if the prescribed period had not been met in relation to the rescheduling notice, as outlined by this Court in Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 135, the Tribunal is not required to again give the prescribed period of notice where a hearing is rescheduled or where a further hearing is required: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 at [79]-[83]; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 at [29]; Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358 (“Ogawa”) at [29].
The Tribunal is, however, required to provide a notice period in relation to a rescheduled hearing that is not “unreasonably short”: Ogawa at [32]-[35].
As the notice period provided by the Tribunal in relation to the rescheduled hearing exceeded the minimum prescribed notice period (even though it was not required to do so), the Court is satisfied that the applicant was given reasonable notice of the rescheduled hearing.
No arguable case of jurisdictional error arises in relation to issue one.
Issue 2: whether the Tribunal erred by conducting the hearing via telephone
To the extent that the applicant takes issue with the Tribunal conducting a hearing via telephone, the Court disagrees that any arguable case of error arises in this regard.
Section 366 of the Act provides:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
…
The Tribunal was therefore legislatively empowered to conduct a hearing via telephone or video link.
The Court notes that the Tribunal was conducting hearings at that time in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction and the applicant and his representative were notified of the Tribunal’s arrangements during that time in its correspondence to them (on 22 February 2022 at CB 75 & 78).
The applicant attended the Tribunal hearing as scheduled on 17 March 2022 by telephone. He was assisted at that hearing by his representative and an interpreter. There is no evidence before the Court to suggest that the applicant (or his representative) raised any concerns regarding the quality of the phone connection or any difficulties in understanding the Tribunal Member, either at the Tribunal hearing or in the time between the Tribunal hearing (on 17 March 2022) and the time the Tribunal handed down its decision (on 10 May 2022).
Unfortunately, there is no transcript before the Court of the Tribunal hearing and there is no evidence in the Court Book (or otherwise before the Court) that suggests that the applicant had any difficulties appearing before the Tribunal by telephone or that he or his representative ever asked the Tribunal for an adjournment to allow for an “in person” hearing. Nor is there any evidence before the Court to suggest that the applicant was prejudiced by attending the Tribunal hearing by telephone.
No arguable case of jurisdictional error arises in this regard.
Issue 3: whether the Tribunal erred by failing to provide the applicant with adequate interpretation services
The applicant also raised issues with the level of interpretation provided to him at the Tribunal hearing, including his oral submissions to this Court that he “did not have a good interpreter on the day” of the Tribunal hearing and that his representative had to assist him with interpreting “otherwise [he] was stressed and could not answer the questions well”.
As outlined by this Court in Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 95, whether there is “inadequate interpretation” of the sort that results in an unfair hearing depends on the particular circumstances of the case: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (“SZRMQ”) at [5]. Importantly, where interpretation services are relied on, those services must be adequate to “convey the substance of what is said” to an applicant so that he or she can “communicate the substance or his or her case and to respond to issues raised”: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at [28]. Further, it is crucial that the essential elements conveyed by an applicant are ultimately received by the Tribunal: SZRMQ at [90].
Here, the applicant must establish (as per SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109) that he was “effectively prevented from giving his evidence” or that “errors had occurred in translation which were so material as to cause the decision-making process to miscarry”: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29].
As outlined above in relation to the issues with the hearing being conducted by telephone, there is no evidence here that the applicant (or his representative) raised any concerns during or after the Tribunal hearing with the quality of the interpretation or his ability to participate. The applicant has not provided a transcript of the Tribunal hearing to demonstrate to the Court that he experienced any difficulties understanding the interpreter. There is also noting on the face of the Tribunal’s decision to suggest that the applicant had any issues understanding any of the Tribunal’s questions. Indeed, the Tribunal noted that it had put questions to the applicant and that he had responded to those questions.
No arguable case of error arises in relation to issue three.
Applicant’s oral submissions before this Court
Many of the concerns raised by the applicant in oral submissions before this Court have been addressed by the Court above. To the extent that the applicant also claims that the Tribunal stated he did have any plans for his return to Vietnam but failed to ask him about his future plans, this fails on a factual level.
The Tribunal set out the applicant’s evidence regarding his future plans as follows (emphasis added):
39.He stated that he chose the education provider for the Australian courses because: “Being able to experience and understand hospitality business from different angles (hierarchically) will help me to better run my business in the future once I complete my course. Diploma will provide me more profound knowledge of managing and operating my own restaurant especially from business perspective. My plan in the future is to complete all the desired courses, accumulate my experience during work in Australia and go back to my home country. Then I will pursue my dream to start up a grand Western restaurant and hope to expand it even further with multiple locations.”
40.The statement above is commendable but if he truly had a dream to open up his own business, he should be in a position to explain how he proposes to do it. He should have plans drawn up and explain to the Tribunal how he plans to afford the cost of the outlay etc. No such plans were provided to the Tribunal. The Tribunal places weight against the applicant’s case because of the lack of details in his answer.
As outlined above, the applicant did provide at least some general information to the Tribunal about his future plans. However, the Tribunal found that the applicant’s evidence lacked detail.
To the extent that the applicant suggests that the Tribunal did not assess his finances in Australia or improperly referenced his lack of access to adequate funds, the Court notes that the Tribunal did assess the material that was before it, writing as follows:
46.The Tribunal has also considered the fact that he did not provide evidence of economic ties to his home country. He owns a car in Australia valued in the sum of $8000 and technological devices in the sum of $5000. He has employment in Australia which may be an incentive for him to wish to remain living in Australia. The Tribunal finds that the applicant’s strong working history in Australia, when considered against that lack of, may be a motivating factor for the applicant to remain in Australia. His evidence was that he finished High School in May 2012 and has not provided evidence that he has ever worked in his home country. The Tribunal does place weight on those facts against the applicant’s case.
As set out above, the Tribunal noted that the applicant had a job in Australia and a strong working history. The Tribunal also noted that the applicant had a car and technological devices valued at $8000 and $5000 respectively.
To the extent that the applicant suggests that the Tribunal should have considered his shares in a restaurant in Australia, there is no evidence before the Court to suggest that this information was before the Tribunal. No error can arise from the Tribunal failing to consider information that was not before it. Further, the Court notes that it is for the applicant to advance whatever evidence and arguments he requires in order to satisfy the Tribunal that he meets the criteria for the grant of the visa.
No arguable case of error arises in this regard.
Otherwise
Materials annexed to the applicant’s affidavit
As outlined above, in addition to annexing a copy of the Tribunal’s decision, the applicant’s affidavit (filed in this Court on 6 July 2022) also annexed some additional material which was not otherwise before the Court or the Tribunal as follows:
(a)a Certificate IV in Commercial Cookery (and associated Record of Results and Completion Letter) issued to the applicant by Skills Institute Australia on 19 May 2022;
(b)documents from MB Bank (in English and Vietnamese) dated 14 February 2022 and 16 February 2022;
(c)an ASIC Company details for “THL Family Investment Pty Ltd”;
(d)Historical payroll information from “ALH Group”; and
(e)a letter from the Tribunal to the applicant dated 16 April 2019 with notification of the outcome of his previous Tribunal review (in relation to a separate visa application not the subject of the review before this Court).
The materials outlined above were not in the Court Book and there is no evidence before the Court to suggest that these materials were before the Tribunal.
The Court notes that an application for judicial review is ordinarily confined to materials which were before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. The Court also notes that it is not open for an applicant to ask that the Court admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration [2007] FCA 622 at [8] and Gupta v Minister for Immigration [2016] FCA 1004 at [27]. Further, it is generally not open to the Court, on a judicial review application, to consider materials which were not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. That principle applies here.
As outlined above, it is for the applicant to provide evidence and make submissions to the Tribunal to satisfy it that the applicant meets the criteria for the grant of the visa. Save for the documents relating to the completion of the Certificate IV in Commercial Cookery (which post-date the Tribunal’s decision), the remaining materials pre-date the Tribunal’s decision and there is no evidence before this Court to suggest that the applicant attempted to provide those materials to the Tribunal but was unable to do so.
In relation to the completion of the Certificate IV in Commercial Cookery, this was considered by the Tribunal (without the supporting evidence) (emphasis added):
24.He indicated that he was studying a Certificate IV in commercial cookery and expected to finish the course at the end of April 2022. His representative confirmed that the end date would be 6 May 2022. He was enrolled in a Diploma of Hospitality. The Tribunal has taken into consideration the fact that he may have completed his course being the Certificate IV in Commercial Cookery, as at the date of this Decision.
As outlined above, while evidence of the completed Certificate IV in Commercial Cookery was not provided to the Tribunal, the Tribunal nonetheless considered the fact that the applicant might complete the course after the Tribunal hearing. However, the Tribunal’s main concern was the length of time it had taken the applicant to progress his studies (noting that he had only completed a Certificate III in Commercial Cookery and was part way through a Certificate IV in Commercial Cookery (or had completed that course at the time of its decision) since arriving in Australia in May 2013.
The remainder of the applicant’s materials (as outlined above) were not before the Tribunal. As such, the Court cannot place any weight on those materials.
Materials provided to the Court by the applicant after the hearing
After the hearing of this matter, the applicant asked my associate if the Court had received some materials that the applicant claimed he had emailed the day before. Further discussions with the applicant uncovered that the applicant had inadvertently sent the materials to a third party. The applicant asked if he could now provide the documents to the Court. With the consent of the Minister’s representative, the Court allowed the applicant to send through additional materials to the Court. The Minister’s representative was advised that if they wished to comment on any of the materials when received, they could contact chambers and the necessary arrangements could be made.
At 12.56pm on 30 May 2023, the applicant sent an email to my chambers (copied to the Minister’s representatives) annexing the following documents:
(a)a CoE dated 27 March 2023 in relation to the applicant’s enrolment in a Diploma of Hospitality Management from 13 March 2023 to 11 August 2023 through Skills Institute Australia;
(b)two medical certificates dated 8 August 2022 and 4 November 2022 from doctors at a medical clinic stating that the applicant was unfit for work or study for the periods from 8 August 202 to 9 August 2022 and 4 November 2022 to 5 November 2022 respectively;
(c)two ANZ Bank Account statements for the period from 1 March 2023 to 31 March 2023 and 1 April 2023 to 28 April 2023 respectively;
(d)an ANZ Business Advantage Statement for THL Family Investments Pty Ltd for the period from 13 April 2023 to 12 May 2023;
(e)an ASIC Company details for “THL Family Investment Pty Ltd”; and
(f)a letter of support from a Trainer/Assessor at Skills Institute Australia dated 16 February 2022.
No communications were received on behalf of the Minister in relation to the additional materials set out above.
As outlined above, an application for judicial review is ordinarily restricted to the materials that the Tribunal had before it. The majority of the documents set out above (at [132](a)-(d)) post-date the Tribunal’s decision and thus could not have been before the Tribunal. The remaining two documents (at [132](e)-(f)) do not appear in the Court Book and there is no evidence before the Court to suggest that they were provided to the Tribunal in support of the applicant’s matter. The documents also fail to address the Tribunal’s core concern (that is, the length of time that the applicant took to progress his studies).
On the basis of the above, the Court does not place any weight on the materials provided by the applicant after the hearing.
Errors in Tribunal decision
At the hearing of this matter, the Minister’s representative took the Court to some errors in the Tribunal’s decision. In particular, the Tribunal:
(a)at [6] of its reasons, references the date of a letter to the applicant as being sent on 21 December 2021. This is incorrect. The Tribunal wrote to the applicant (through his representative) on 2 December 2021 (CB 44-47);
(b)at [16] of its reasons, references the date of receipt of materials from the applicant as the 6 April 2022. This is also incorrect. The applicant’s representative responded to the Tribunal’s s 359A request (on the applicant’s behalf) on 5 April 2022 (CB 106); and
(c)in between [16] and [17] of its reasons (at the top of page 4 of the reasons, CB 117), includes what appears to be a quote. However, this quote does not appear in the applicant’s submissions or any materials provided by the applicant to the Tribunal. The “quote” reads as follows:
Due to this ongoing appeal, I am currently enrolled in the Certificate IV in Commercial Cookery.
The Court considers these errors to be no more than typographical in nature. The dates of the documents referenced at (a) and (b) above were not significant. The Tribunal did not, for example, incorrectly suggest that response from the applicant’s representative was not received within the requested time frame. The dates simply appear to have been incorrectly reproduced in the Tribunal’s reasons.
In relation to the additional “quote”, there are no findings by the Tribunal that turn on the contents of that quote (which appears to have been included in error). The Tribunal did not state that it placed any weight on that information and, notably, the applicant was in fact enrolled in and studying a Certificate IV in Commercial Cookery at the relevant time.
In the circumstances, the Court does not consider that the typographical errors above give rise to any arguable case of jurisdictional error on the part of the Tribunal.
Conclusion regarding merits of the substantive application
The applicant’s proposed “ground of review”, affidavit and oral submissions do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has been unable to identify any arguable grounds of error of the sort of this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
While the insignificant delay and lack of prejudice weigh in favour of granting the applicant’s request for an extension of time, the lack of an adequate explanation for the delay and lack of an arguable case of error in the Tribunal’s decision (judged at an impressionistic level only) heavily outweigh those considerations.
The Court does not consider it to be in the interests of the administration of justice for an extension of time to be granted.
The application for an extension of time is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 June 2023
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